TMI Blog2018 (5) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... ot fulfill this condition since GSRDC is neither State Government, Central Government or any statutory body. Held that:- Act of 1999 makes detail provisions for awarding contracts for infrastructure development within the State through private participation. In the process, the Government could take assistance of a Government agency or a specified Government agency. The selection of the person would either be on the basis of competitive public bidding as provided in section 9 of the Act or through direct negotiations as provided in section 10. The Act of 1999 also lays down broad parameters of the concession agreement that such a person would enter into with the Government, Government agency or the specified Government agency as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities would frustrate.- Decided against revenue. - R/Tax Appeal No. 426 of 2018 With R/Tax Appeal No. 427 of 2018 With R/Tax Appeal No. 433 of 2018 - - - Dated:- 2-5-2018 - MR. AKIL KURESHI AND MR. B.N. KARIA, JJ. For The Petitioner : Mrs Mauna M Bhatt(174) COMMON ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These appeals arise in common background. Facts being similar in all appeals, we may record facts from Tax Appeal No.426 of 2018. 2. Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal dated 27.10.2017 raising following question for our consideration: Whether on facts and circumstances, the Appellate Tribunal has erred in law and on facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment. It is also totally controlled by the State Government which could be gathered from the list of Board of Directors and the Memorandum of Association. Commissioner of Income Tax (Appeals) was also of the opinion that GSRDC can be treated to be statutory body since it is a Government agency as defined under section 2(e) of the Gujarat Infrastructure Development Act, 1999 ('the Act of 1999' for short). The Act of 1999 was enacted to implement the Government policy for private participation in development works such as construction of roads, bridges etc. He also noted that GSRDC was acting only as a NODAL agency for the State Government for infrastructure development. He further noted that; ( i) The approval for the proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intaining any infrastructure facility which fulfills the conditions laid down therein. Clause (b) of these conditions read as under: ( b) It has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (I) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility. 9. The Revenue argues that the agreement entered into between the assessee and GSRDC does not fulfill this condition since GSRDC is neither State Government, Central Government or any statutory body. This contention of the Revenue would have to be examined in light of facts on record. Such facts are that the GSRDC is a wholly Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion agreement. Subsection (1) of section 4 provides that a person may enter into a concession agreement of the nature specified in schedule II with the State Government, a Government agency or a specified Government agency and the scheme for concession agreement shall be such as may be prescribed. Subsection (3) of section 4 provides that no concession agreement shall provide for transfer of a project by a developer to the State Government, a Government Agency or a specified Government Agency later than thirtyfive years from the date of agreement. 11. Section 7 of the Act of 1999 provides that no concession agreement for undertaking a project shall be entered into with a person unless the procedure specified in sections 8 and 9 or sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defined in section 2(e) of the Act of 1999. Significant factors in the present case are that the road widening project was cleared by the Government, land for such purpose was alloted by the Government. The concession agreement which GSRDC executed was approved by the Government. It was under the Government Resolution that the assessee would collect toll upon completion of such project. Upon the completion of the project period, the entire infrastructure so developed would vest in the Government. Signatory to the applicant may be GSRDC for all practical purposes and in essence, it was the agreement between the assessee and the State Government. We are conscious that condition( b) of subsection (4) of section 80IA requires the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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